By CATHERINE TOMASKO, ESQ., Andrews Publications Staff Writer
Sept 27, 2005 (WASHINGTON) — The Sudanese government is challenging a Virginia federal court’s refusal to dismiss a suit filed by families of the service members killed in the 2000 bombing of the USS Cole who say the country provided material support to al-Qaida for the attack.
- USS Cole
Sudan was sued for millions in the U.S. District Court for the Eastern District of Virginia by the families of the 17 sailors who were killed Oct. 12, 2000, in al-Qaida’s bombing of the USS Cole in Aden, Yemen. The suit, which was filed in July 2004, includes claims for wrongful death, battery and intentional infliction of emotional distress.
The plaintiffs contend that Sudanese government is liable as a result of its provision of material support to al-Qaida, a terrorist organization that sent its members to bomb the USS Cole. The suit says the country’s material support consisted of funding, directing, training and harboring the terrorists.
The government moved to dismiss the suit on the grounds that subject matter jurisdiction was lacking because it was immune from suit based on the Foreign Sovereign Immunities Act. The law provides that foreign states are immune from suit in the U.S. courts unless certain exceptions apply.
Sudan further asserted that the plaintiffs failed to state a claim because they were allowed to proceed only under the Death on the High Seas Act. The statute allows the personal representative of a decedent to claim damages for wrongful death occurring on the high seas in the district courts in admiralty.
The plaintiffs argued that Sudan could be sued under the terrorist exception to the Foreign Sovereign Immunities Act. The exception waives immunity for foreign states in cases where money damages are sought for personal injury or death caused by the provision of material support or resources to terrorists. Immunity is waived if the provision of material support is engaged in by an official, employee or agent of a foreign state while acting within the scope of his or her office, employment or agency.
The exception only applies if a foreign state is designated by the United States as a state sponsor of terrorism.
U.S. District Judge Robert G. Doumar held Aug. 26 that the allegations in the complaint were sufficient to establish subject matter jurisdiction. He explained that the plaintiffs alleged that al-Qaida could not have committed the bombing without the support of sponsors such as Sudan.
The suit alleges the Sudanese government and Osama bin Laden co-owned a bank and a company. Also, the country allegedly let al-Qaida run a terrorist training camp within its borders and allowed an al-Qaida member to ship crates of explosives from Sudan to Yemen, where the USS Cole bombing occurred, Judge Doumar said.
These allegations, if true, would support an inference that Sudan’s actions were the proximate cause of the USS Cole bombing and the deaths of the plaintiffs’ decedents, he said.
The judge rejected Sudan’s argument that the suit’s allegations did not sufficiently plead that the government provided material support to al-Qaida.
"These facts not only satisfy the [Foreign Sovereign Immunities Act’s] definition of ’material support or resources,’ but suggest the existence of a joint enterprise or partnership. If these allegations do not suffice to establish ’material support or resources’ for the purpose of jurisdiction, it is difficult to imagine what can," Judge Doumar said.
He also ruled that the complaint’s allegations satisfied the terrorist exception because they claimed that Sudanese officials acted within the scope of their duties when providing material support to al-Qaida.
Judge Doumar concluded his opinion by finding that it was premature at the current stage of the litigation to rule on Sudan’s argument regarding the plaintiffs’ failure to state a claim for wrongful death.
The judge said a decision on the applicable substantive law at this stage would place a burden on the defendant, as he expected an interlocutory appeal.
Sudan has already filed a notice of appeal with the District Court, stating it is pursuing an appeal to the U.S. Court of Appeals for the 4th Circuit.
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